“Broken” Pattern Enforcement “Fixed”

On September 28, the federal Mine Safety and Health Administration (MSHA) issued new screening criteria for the formidable pattern of violations enforcement provisions of the Federal Mine Safety and Health Act.  According to the federal agency, the new criteria are necessary because the old pattern program (from the Bush Administration) is “broken.” The rationale: “Not one mining operation has ever been placed on a pattern of violations.”

Assistant Secretary of Labor for Mine Safety and Health Joe Main noted that the old program “cast too broad a net and did not distinguish mines with the highest levels of elevated enforcement.”  He added that the agency is “aggressively pursuing both regulatory and legislative reforms” to further amend the pattern of violations enforcement program. The new criteria are presented as a “stop-gap measure until reform can occur.”

Section 104(e) of the Mine Safety and Health Act gives MSHA the power to issue closure orders to mines with a pattern of significant and substantial (S&S) violations. The closure orders would be limited to those areas of the mine affected by an S&S violation, but it is inevitable that once a mine is subjected to “pattern enforcement” multiple closure orders will ensue with major adverse impacts on operations.

This is one of the severest enforcement measures MSHA can impose. By law, a mine will remain on “pattern” until there has been an inspection of the entire mine with no S&S violations found. That will make release from pattern enforcement extraordinarily difficult and very likely impossible.

The new screening criteria are substantially distinct. In preliminary screening, only the most recent 12 months of compliance history will be considered (rather than 24 months). The initial screening will take into account all citations and orders without regard to whether they are final. The second level of review will take into consideration whether an order is final. One final note – the status of the Pattern of Violations Procedures Summary is unclear. Thus, the viability and timing of an intermediate mechanism for removal of an operator from Pattern of Violations consideration is in question. A copy of the criteria can be found on the MSHA website.